In 2011, the District of Columbia joined 28 states in passing legislation aimed at stopping Strategic Lawsuits Against Public Participation suits. SLAPP suits are usually brought by powerful interests who want to silence their critics. Although the lawsuits are often unsuccessful, the protracted litigation drains precious resources and sends a chilling message to critics: keep silent or we will sue you.
The District of Columbia Anti-SLAPP Act of 2010 allows parties to move to dismiss such lawsuits at an early stage. But almost three years after the statute first became effective, one important question remains unsettled: if a trial court denies an anti-SLAPP motion, does the moving party have the right to immediate appellate review, or must it wait until the case is over?
Two high-profile anti-SLAPP cases — both of which have attracted amicus briefs from the American Civil Liberties Union, the Reporters Committee for Freedom of the Press and a host of other media and First Amendment organizations — promise to resolve the issue.
When considering the legislation that would ultimately become D.C.’s anti-SLAPP statute, the D.C. council wanted to provide a right to immediate appeal and, in fact, an early draft of the legislation did exactly that. After all, the whole point of the law is to help parties avoid the potentially significant costs involved in contending with a protracted lawsuit. If a party’s anti-SLAPP motion is denied, the D.C. council reasoned, it should not have to spend years potentially enduring the slings and arrows of the litigation process.
However, the D.C. council ultimately removed the language providing an immediate right to appeal from the denial of an anti-SLAPP motion because of a then-recent opinion by the D.C. Court of Appeals — D.C.'s highest court — which suggested the D.C. council lacked authority to provide such a remedy.
As a result, the ultimate version of the statute that was enacted, and which remains unchanged, does not expressly allow a party to immediately appeal from the denial of an anti-SLAPP motion. Nevertheless, two cases are asserting that such a right exists.
Mann v. National Review
The case attracting the most attention arises out of a July 2012 blog post by conservative scholar Rand Simberg on the website of the Competitive Enterprise Institute. In it, Simberg likened Pennsylvania State University noted climatologist Michael Mann to Jerry Sandusky, the accused pedophile and former assistant Penn State football coach (“…instead of molesting children, he has molested and tortured data”). Writer Mark Steyn later used Simberg’s comparison in a National Review article criticizing Mann. The result was a defamation suit that could have broad implications for the D.C. anti-SLAPP statute.
Citing D.C.’s anti-SLAPP statute, the defendants filed an anti-SLAPP motion. After it was denied by the Superior Court, they filed notices of appeal to the D.C. Court of Appeals. Once the case arrived at the D.C. Court of Appeals, that court promptly issued an order directing the parties to explain why the appellate court had jurisdiction over the interlocutory appeal. The joint response by the defendants/appellants acknowledged the lack of express authority in the statute, but argued that jurisdiction was nevertheless available under the collateral order doctrine.
The defendants/appellants argued that the D.C. Council intended to grant parties immunity from standing trial against meritless defamation claims, similar to the qualified immunity granted to government officials in § 1983 claims (which the Supreme Court has found to be an issue immediately appealable as a collateral order), and that this purpose would be defeated if defendants could not appeal the denial of an anti-SLAPP motion until after trial.
The ACLU, the Reporters Committee for Freedom of the Press and 19 other media organizations and District of Columbia all filed amicus briefs in support of the defendants/appellants, arguing that there needs to be a right to immediate interlocutory appeal under the collateral order doctrine.
For his part, Mann argued that, if the D.C. Council wanted to provide this right, it should have put it in the statute. He noted that anti-SLAPP statutes in other states expressly provide defendants with the right to immediately seek appellate review when their anti-SLAPP motions are denied. According to Mann, his case is no different from the vast majority of other lawsuits, where a party must wait until all trial court proceedings are complete before taking an appeal.
At this point, a hiccup of sorts interrupted the proceedings. In December 2013, the D.C. Court of Appeals essentially dismissed the appeal as premature, finding that, because Mann had amended his complaint before the D.C. Superior Court had ruled on the anti-SLAPP motions, the original complaint — which was the subject of the anti-SLAPP motions — had been superseded. The D.C. Court of Appeals remanded the case to the Superior Court to assess the anti-SLAPP motions against the amended complaint.
In January 2014, the D.C. Superior Court denied the anti-SLAPP motions to dismiss the amended complaint. Three out of the defendants have now filed notices of appeal to the D.C. Court of Appeals, where the interlocutory appealability issue will be front and center again.
Burke v. Doe
Because of the back-and-forth in the Mann case, it is possible that another case will be the first pronouncement from the D.C. Court of Appeals on this issue.
Susan Burke is a lawyer in Washington, D.C., best known for representing plaintiffs in suits against the military or government contractors. In January 2012, an anonymous individual allegedly changed Burke’s Wikipedia profile to suggest that a D.C. federal judge had criticized a case Burke had brought against the company then named Blackwater USA Inc.
In fact, Burke was not involved in this specific case. Burke alleges that, after she corrected the entry, another Wikipedia editor republished the original false and defamatory statements. Burke alleges that she notified this second editor of the mistake, but the editor republished the information and continued to do so each time Burke’s counsel removed the falsehoods from the site.
Burke brought a libel action against the two editors, named only by their Wikipedia handles. She apparently intended to serve discovery on Wikipedia, seeking information about the actual names and identities of the two editors. While the second editor did not respond to the action, the first editor, known only by the screen name “Zujua,” retained counsel and moved to quash the subpoena under a provision of the D.C. Anti-SLAPP Act aimed at protecting anonymous speech.
Zujua argued that Burke was unable to prove the essential elements of a libel claim and that, as a result, her suit should be dismissed and he should be allowed to remain anonymous. Burke responded by arguing that she had pled facts in support of all of the essential elements and that the court should deny Zujua’s anti-SLAPP motion. The Superior Court agreed with Burke and denied Zujua’s anti-SLAPP motion. That’s when things began to get interesting.
Seeing the ambiguity of the statute as a green light, Zujua appealed the Superior Court’s denial of his anti-SLAPP motion to the D.C. Court of Appeals. Noting that the right of immediate interlocutory appeal was not expressly permitted in the statute, Burke moved to dismiss Zujua’s appeal on the grounds it was improper. At the same time, the D.C. Court of Appeals ordered Zujua to explain why his appeal was proper.
Zujua argued that, although the D.C. anti-SLAPP statute was silent on whether there was a right to immediate appellate review from the denial of an anti-SLAPP motion, it was clearly the D.C. Council’s intent to provide such a right. He also argued that, absent a right to immediate appellate review, his identity would be immediately and irreparably revealed:
The underlying purpose of the special motion to quash in Section 16-5503 is to protect speakers’ anonymity. A denial of that right, like the denial of qualified immunity in constitutional litigation, is essentially unreviewable after trial — indeed, unreviewable as soon as the identity is discovered — and constitutes a final order under the collateral order doctrine.
Courts in other jurisdictions have accepted this line of reasoning. In Fitch v. Doe #1, 869 A.2d 722 (Me. 2005), the Maine Supreme Court held that Doe could immediately appeal a trial court’s order directing his/her internet service provider to disclose identifying information.
The court reasoned that an immediate interlocutory appeal was necessary because otherwise “disclosure of Doe’s identity will strip Doe of anonymity, making a later appeal moot.” In Raiser v. Brigham Young University, 127 Fed. Appx. 409 (10th Cir. 2005), the court held that a plaintiff could immediately appeal a trial court order denying his request to litigate his case using a pseudonym under the collateral order doctrine. Otherwise, it would be “essentially unreviewable on appeal because any right to proceed anonymously will be lost if not permitted before trial.”
It stands to reason, then, that, even if the D.C. Court of Appeals decides there is no right to immediate appeal from the denial of a typical anti-SLAPP motion (i.e., one not involving anonymity), a case involving the right to speak anonymously is different because the unmasking of the speaker’s identity cannot wait until trial, or even discovery. Thus the denial of an anti-SLAPP motion in those cases, it can be argued, must be immediately appealable.
Now that the Burke case is fully briefed and argued, interested parties are waiting for the D.C. Court of Appeals to issue its decision. The court could:
dismiss the interlocutory appeal on the grounds the statute contains no such right;
assert that there is a right to immediate appeal, but only in situations involving anonymous sources;
affirm its own appellate jurisdiction in such situations, while agreeing with the Superior Court’s finding that the anti-SLAPP motion in this particular case was properly denied;
affirm both its jurisdiction and the right to immediate appeal in anonymity cases and then declare that the anti-SLAPP motion in this case was improperly denied;
or make a blanket assertion of the right to immediate appeal in all such cases, regardless of whether they involve anonymity.
One issue for the appellants in both Burke and Mann is that the D.C. Court of Appeals has already rejected an interlocutory appeal from the denial of an anti-SLAPP motion. In a 2011 case, it issued what the D.C. Circuit later referred to as a “terse, unpublished [per curiam] order” dismissing an interlocutory appeal under the anti-SLAPP Act, stating that “[t]he subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 357 U.S. 541, 546 (1947), and the District’s anti-SLAPP statute does not provide for interlocutory review. See, e.g., Englert v. MacDonell, 551 F.3d 1099 (9th Cir. 2009).” The appellants and amici in Burke and Mann have argued that the per curiam order has no precedential value and is, in any event, wrong.
As a practitioner in the District of Columbia, my preference would be for parties to enjoy the right of interlocutory appeal when their anti-SLAPP motions are denied, regardless of whether anonymity happens to be in play. Nonetheless, it is entirely possible the D.C. Court of Appeals will draw a sharp distinction based on the presence or absence of anonymity-related concerns, or will find there is no right at all, given the absence of language in the statute. Stay tuned.